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Sept. 9 — Advocates both inside and outside the government regularly influence government regulations by selectively presenting or even distorting scientific findings, the nation's former top regulator cautioned in a Sept. 9 paper.

These practices both result in flawed regulations and threaten the credibility of the scientific process, wrote Susan Dudley, who headed the White House's Office of Information and Regulatory Affairs under George W. Bush.

The main factor contributing to the “scientization” of policy is the mistaken belief that science alone can answer policy questions, Dudley wrote.

“Policy issues are framed as if they can be addressed by science,” Dudley told Bloomberg BNA Sept. 9. “Science is a positive discipline. It provides essential inputs for policy, but policy questions are really a normative question—how much is too much, what’s the right amount—that science really can’t answer. Yet it’s put in that position.”

While science can give policy makers information about the world, it can't tell them what they should do about it, Dudley, now director of the George Washington University Regulatory Studies Center, wrote in her 40-page paper, titled “Regulatory Science and Policy: A Case Study of the National Ambient Air Quality Standards.” Other factors, such as those related to economics, engineering, ethics, law and politics, should also be taken into account, said Dudley.

“The responsibility of scientists, engineers and policy analysts is to understand and clearly communicate the scientific facts and uncertainties and to describe expected outcomes objectively. Deciding what to do involves questions of societal values where scientists, engineers and policy analysts have no special authority,” Ellis Cowling, a former member of the Environmental Protection Agency's Clean Air Scientific Advisory Committee, wrote in 2006. Cowling was quoted in Dudley's paper.

Hidden Political Agenda

The scientization of policy also happens because many risk assessments carry with them hidden political judgments, Dudley wrote.

Those biased inferences and assumptions can distort risk estimates and deliver predictions that sound more precise than they are, according to Dudley.

To underscore her point, Dudley quoted Robert Lackey, a former EPA scientist, who wrote in 2013, “Science should be objective and based on the best information available. Too often, however, scientific information presented to the public and decision makers is infused with hidden policy preferences. Such science is termed normative, and it is a corruption of the practice of good science.”

The Occupational Safety and Health Administration has long faced questions about its use of science. Most recently, the agency's efforts to bolster protections against silica exposure have provoked strong reactions from industry groups, which question whether the science underpinning the agency's rulemaking is sound.

Vague Justifications

Some of the scientization problems are rooted in statutes that restrict agencies from considering all the factors, thus nudging them to embrace the false notion that science alone is sufficient to develop policy, Dudley wrote.

For example, the EPA's Clean Air Act directs the agency to set air quality standards that protect public health, but without considering the costs of achieving them.

As a result, EPA staff are forced to present vague justifications for their air quality regulations that carefully sidestep any mention of economic trade-offs, wrote Dudley.

She was quick to note, however, that she doesn't accuse government scientists of intentionally perverting the regulatory process.

“I think there are people that have strong policy views,” Dudley told Bloomberg BNA. “They think they know the right outcome, and therefore they're willing to make the science support it. I don't think it's malicious, but I think it's difficult for all of us to be completely objective. We come into something with a view of who's the good guy and who's the bad guy, and we have to check ourselves to be open to contrary views. It's really tough.”

Dudley further suggested that some of those biases stem from scientists' well-intentioned commitment to their fields of study.

“When you've devoted your life to something, you think it's the most important thing for public policy to focus on,” she said.

ACUS Agrees

Reeve Bull, research chief of the Administrative Conference of the United States, told Bloomberg BNA Sept. 8 that he agreed broadly with the report's findings.

“There's often a tendency to characterize risk management issues as if they were risk assessment issues—saying, ‘This is the state of scientific information; thus it's necessary to regulate,' ” Bull said. “When, in reality, whether you regulate or not is really more of a policy decision.”

Dudley is also an ACUS member.

In 2013, ACUS approved a recommendation calling for greater transparency of agencies' use of science during rulemaking.

Adam Finkel, OSHA's former health standards director, argued that economic misestimations are an even bigger problem than scientific ones.

“The track record is clear that estimates on job loss and costs are almost always exaggerated,” Finkel, now executive director of the University of Pennsylvania Law School's Penn Program on Regulation, told Bloomberg BNA Sept. 8. “That's every bit as fatal to good decision making as [scientization].”

Finkel also challenged Dudley's assertion that what the regulatory system most needs are regulators who refrain from putting their thumbs on the scale to influence policy outcomes.

“Her alternative is putting a thumb on the middle of the scale, and that's no less value-laden than what EPA is doing,” Finkel said. “The idea that coming down on the middle is correct is a hoax, because it's only correct if you believe that the middle is where you should be. And that's a policy decision.”

Recommendations

To correct the problem of scientization, Dudley issued a set of recommendations, calling on lawmakers to clarify in statutes that both costs and benefits should be considered during rulemaking.

Other recommendations include a clearer role for scientific advisors, an acknowledgment from the White House that risk assessment involves assumptions and judgments as well as pure scientific findings, reforms that encourage greater feedback and a mandate to require scientific advisory panels to represent a broader diversity of perspectives.

Dudley also called for institutionalized feedback through the retrospective review of regulations, rules that facilitate natural experimentation and learning, an insistence that any science accepted to support rulemaking must be reproducible and the use of collaborative tools to generate knowledge, such as a “wiki” approach to public comment.

Dudley's findings echo those of the Bipartisan Policy Center, which found in an August 2009 report that, as a result of the commingling of science and politics, needed regulations may be stalled, dubious regulations may be adopted, policy debate can degraded, the morale of scientists is weakened and public faith in government and science can be undermined.

“The first impulse of those concerned with regulatory policy should not be to claim ‘the science made me do it' or to dismiss or discount scientific results, but rather to publicly discuss the policies and values that legitimately affect how science gets applied in decision making,” the Bipartisan Policy Center report found.

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